National Interest Waivers

Individuals eligible for national interest waiver (NIW) classification may enjoy substantial advantages in the green card process. While they may skip the labor certification process normally required of their employers, they must have an offer of employment from a U.S. organization and must meet the broadly worded, but strictly enforced, NIW criteria.

National Interest Waiver Eligibility

NIW applicants must demonstrate threshold EB-2 eligibility either by holding an advanced degree or possessing exceptional ability in the sciences, arts, or business. Evidence of exceptional ability includes appropriate lesser degrees, employment verification letters, favorable salary history, licenses, associational memberships, professional recognitions, and/or awards.

The more challenging set of NIW criteria is the extensive evidence required to show that the individual’s work will be in the “national interest” of the U.S. Specifically, the individual’s work: (a) must have substantial intrinsic merit; (b) must be national in scope; and (c) must be such that the national interest would be adversely affected by testing the labor market, through labor certification, to find a U.S. worker with the minimum qualifications for the position.

Factors vital to the success of a NIW case include evidence the individual’s personal work will accomplish any of the following: improve the U.S. economy, wages, and/or working conditions; improve educational and training programs for U.S. children and/or under-qualified workers; provide more affordable housing for young, aged, or poor U.S. residents; improve the U.S. environment and lead to more productive use of the national resources; and/or directly benefit an interested U.S. government agency.

National Interest Waiver Evidence

Available to persons with an advanced degree, or of exceptional ability in the sciences, arts, or business and requiring neither a job offer nor labor certification, this avenue to permanent resident status does require establishing that that applicant will engage in work which is in the “national interest” of the United States as documented by extensive and strong evidence. An immigrant visa petition and a request for a waiver of the labor certification requirement under this category must include at least three of the following:

1. Evidence that the applicant has an advanced degree from a college, university, school, or other institution of learning relating to the area of exceptional ability.
2. Evidence in the form of letters from current or former employers showing that the applicant has at least ten years of full-time experience in the field for which he or she is being sought.
3. A license to practice the profession or certification for the profession.
4. Evidence that the applicant has commanded a salary or other remuneration for services which demonstrate exceptional ability.
5. Evidence of membership in professional associations.
6. Evidence of recognition for achievements and significant contributions to industry or the applicant’s field by peers, governmental entities, or professional or business organizations.

Previously, the national interest immigrant visa category enabled people working in the arts and sciences to obtain permanent resident status with relative ease and without labor certification or a job offer. However, an administrative decision, New York State Department of Transportation, made it much more difficult to obtain permanent resident status without labor certification based upon a national interest argument. Specifically, applicants must establish that they seek employment in an area of substantial intrinsic merit; that the benefit will be national in scope; and that the national interest would be adversely affected if labor certification were required. This decision most severely impacts people early in their career because demonstrating that the foreign worker has already contributed to his or her field to such an extent that his or her work is in the national interest often is difficult to satisfy.